Seekatz v. Brandenburg

• Decision Date: 23 June 1931
• Docket Number: Case Number: 20061
• Citation: 150 Okla. 53,1931 OK 375,300 P. 678
• Parties: SEEKATZ v. BRANDENBURG.
• Court: Oklahoma Supreme Court

1931 OK 375

300 P. 678

150 Okla. 53

SEEKATZ v. BRANDENBURG.

Case Number: 20061

Supreme Court of Oklahoma

Decided: June 23, 1931

Syllabus

¶0 1. Judgment--Petition to Vacate Judgment as Direct Attack.

A direct attack on a judicial proceeding is an attempt to avoid or correct it in some manner provided by law; held, that petition to vacate and set aside a judgment of the district court is a direct attack upon the judgment.

2. Pleading--Amended Pleading Filed as Substitute--Original Allegations not Considered in Passing on Demurrer to Amended Pleading.

Where amended pleading is filed as a substitute for the other pleading, or filed without expressly adopting the original pleading, the allegations of the prior pleading, except as repeated in the amended pleading, are wholly abandoned, and no reference whatever can be made to the original pleading in determining whether or not a demurrer should be sustained to the pleading in its amended form.

3. Process--Service of Summons on Defendant by Leaving Copy at Son's Place of Business Held Invalid.

Where A. is defendant in an action and summons is left at place of business of B., who is a son of A., the father and son maintaining separate homes, held, said purported service is invalid.

4. Judgment--Petition to Vacate Judgment for Falsity of Return of Service and Fraud Regarded as Independent Action.

A party is not precluded by a sheriff's return of service from showing its falsity, and where petition is filed to vacate a judgment on the grounds of falsity of the return and fraud practiced by the successful party, it is in the nature of an independent action; and in such case it matters little as to the mode or manner in which fraud is effected. A court of equity looks to the effect, and asks if the result is a consequence of fraud.

5. Same--Right to Vacation of Judgment not Affected by Challenging Court's Jurisdiction to Render Any Judgment.

The fact that a party may have challenged the validity of the service and the jurisdiction of the court to render any judgment will not justify the denial of his application to have the judgment opened.

6. Appeal and Error--Review--Presumption in Favor of Findings in Equity Case.

In an equitable action, the presumption is in favor of the finding of the trial court, and it will not be set aside, unless against the clear weight of the evidence.

Appeal from District Court, Tulsa County; R. D. Hudson, Judge.

Action by A. Brandenburg, an incompetent, by guardian, F. J. Brandenburg, against J. A. Seekatz et al. Judgment for plaintiff, and defendant named appeals. Affirmed.

E. G. Wilson, R. C. Searcy, and Arthur B. Honnold, for plaintiff in error.

G. C. Spillers and Donald Prentice, for defendant in error.

CLARK, V. C. J.

¶1 This is an equitable action to set aside a judgment and restrain the sale of lands thereunder commenced in the district court of Tulsa county, by defendant in error, A. Brandenburg, by his next friend, F. J. Brandenburg, against J. A. Seekatz, C. E. Little, Falby Little, and R. D. Sanford, sheriff of Tulsa county, of which defendants below J. A. Seekatz alone appears as plaintiff in error herein.

¶2 The parties will be referred to as they appeared in the court below.

¶3 Plaintiff alleged, in substance, that defendants C. E. and Falby Little executed note and mortgage to him on August 25, 1923, for $ 1,725; and again on September 9, 1924, executed to him note and mortgage for $ 1,775, secured by the lands in controversy; that the last-mentioned mortgage contained a provision, "subject to an incumbrance of $ 2,000," which provision was made by the said C. E. and Falby Little for the purpose of imposing upon and defrauding him; that in truth and in fact no such incumbrance existed; that thereafter, on or about March 1, 1926, defendants C. E. Little and Falby Little executed a purported note and mortgage to defendant J. A. Seekatz for $ 2,000 secured by the lands in controversy, which was never recorded; that defendant J. A. Seekatz commenced an action in the district court of Tulsa county, No. 35541, entitled J. A. Seekatz v. C. E. Little et al., to foreclose his mortgage; that plaintiff herein was made a party defendant; that a purported service of summons was had on plaintiff; judgment was entered therein by default; plaintiff J. A. Seekatz's lien therein was adjudged superior to lien of plaintiff herein; order of sale of the lands was issued, and the lands advertised for sale.

¶4 Plaintiff alleged that he was 86 years of age, incompetent and unable to handle his business affairs, and had been during all the times mentioned herein; that no guardian had been appointed for him; that by reason of plaintiff being incompetent at the time cause No. 35541 was filed against him, he neither attempted to, nor made defense or appearance in said action; that he was wholly incompetent to understand the nature of the proceedings; that his lien is superior, prior, and paramount to claims of defendants C. E. Little, Falby Little, and J. A. Seekatz; that the judgment in cause No. 35541 was based upon false and perjured testimony, known to be false and perjured by defendant J. A. Seekatz, plaintiff in said cause No. 35541; that plaintiff will sustain irreparable injury and damage, and has no adequate remedy at law to protect him; prayed that the judgment in cause No. 35541 be vacated, set aside, and held for naught, and he be permitted to defend said cause; that the sale of the property be enjoined.

¶5 Notes and mortgages of plaintiff and judgment in cause No. 35541 attached as exhibits. Petition was duly verified by the next of friend. Restraining order was issued. Motion of defendants filed to dissolve on grounds issued without notice and petition failed to state cause of action. Overruled. Demurrer of defendants was filed. Overruled. Defendants filed answer. Leave to file amended petition granted.

¶6 Amended petition was filed, showing style of cause: "A Brandenburg, an incompetent, by F. J. Brandenburg, his guardian," plaintiff, as against the same defendants as original petition; alleged, in substance, that since filing of the original petition, A. Brandenburg had been adjudged an incompetent and F. J. Brandenburg, his next friend in original petition, was appointed his guardian; alleged about the same allegations as in original petition, but did not make original petition a part of amended petition; that no personal service was had on plaintiff, A. Brandenburg, in cause No. 35541; that purported service was false and untrue; that the judgment in cause No. 35541 was secured by fraud and false testimony, and known to be false and perjured by defendant J. A. Seekatz, plaintiff in cause No. 35541. Prayed for same relief as in original petition. Same was duly verified by guardian. Same exhibits attached as in original petition.

¶7 Motion filed by defendants on grounds of departure. Overruled. Demurrer filed by defendants on grounds petition as amended fails to state cause of action; plaintiff has no legal capacity to prosecute action; action not commenced by person competent to maintain the action. Overruled.

¶8 Amended answer of defendants was filed by way of general denial. Admitted the execution of plaintiff's note and mortgage. Alleged plaintiff had both actual and constructive notice of the pendency of the action, No. 35541, and that the judgment rendered therein was rendered with the knowledge and consent and by permission of A. Brandenburg and his agent, F. J. Brandenburg. Denied the incompetency of A. Brandenburg at the time of the commencement of cause No. 35541 or the rendition of the judgment. Denied his incompetency at this time. Also set up transactions had between defendant J. A. Seekatz and defendants C. E. and Falby Little, and alleged notice thereof by plaintiff herein. Prayed that plaintiff take nothing, and that they have their costs and other proper relief.

¶9 Motion to strike and demurrer of plaintiff overruled.

¶10 Plaintiff replied by way of denial of allegations of new matter set up by defendants.

¶11 Judgment was entered for plaintiff, vacating the judgment in cause No. 35541, and enjoining the sale of the lands and the enforcing of the execution based on the said judgment.

¶12 Motion for new trial filed by defendant J. A. Seekatz. Overruled. Exception. Notice of intention to appeal given by J. A. Seekatz. Defendant J. A. Seekatz brings the cause here for review.

¶13 The trial court made the following findings of fact:

"The court further finds that at the time of the purported service of summons in the case of J. A. Seekatz, Plaintiff, v. A. Brandenburg and C. E. Little and Falby Little, No. 35541, in the district court of Tulsa county, Okla., the said A. Brandenburg was wholly incompetent, within the meaning of the law, and wholly incompetent to transact his business affairs.

"The court further finds that the return of the officer in cause No. 35541 entitled 'J. A. Seekatz Plaintiff, v. A. Brandenburg et al., Defendants,' above mentioned, was false and untrue, and that no service of summons in said cause No. 35541 in the district court of Tulsa county, Okla., was made on the plaintiff, A. Brandenburg, and that the said plaintiff, A. Brandenburg, did not enter his appearance in said cause, and had no notice thereof"

--together with other findings of fact not necessary to consider, and entered Judgment as follows:

"It is, therefore considered, ordered, adjudged, and decreed by the court, that the judgment heretofore entered in cause No. 35541, in the district court of Tulsa county, wherein defendant, J.

¶14 A. Seekatz, was plaintiff, and plaintiff, A. Brandenburg, and defendants C. E. Little and Falby Little were defendants, be, and the same is hereby vacated, set aside and held for naught, and the defendants, their agents, attorneys, deputies, and any and all other persons acting under or by virtue of any authority from them, or any of them, be, and they are hereby perpetually enjoined from asserting, or...